Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
Speaker 1 (00:00):
Defamation lawsuit against Michael Lindell could conclude today. The suit
comes from Eric Kumer, a former director of product, strategy
and security for Dominion Voting Systems. In twenty twenty, the
voting machine company was the target of election conspiracy theories
of which Mike Lindell was a prominent purveyor and has
played a key role in post election litigation, including winning
(00:20):
a historic settlement in a defamation case against Fox News.
Speaker 2 (00:23):
And joining is now in the koa Commas Spirit Health hotline.
It's the KO legal anaist. Our friend, Scott Robinson. Scott,
we appreciate coming on with this. I'll start with this
that Mike Lindell has said, and he said this on
the stand. He believes everything he said about the election,
but also said it could be hyperbole, so legally his
exaggeration of legal defense, it isn't.
Speaker 3 (00:43):
It really isn't. But the reality is that it's very
difficult to recover for defamation in Colorado. Unlike most states,
we treat a private individual the same as a public
individual in matters of public interest or general con which
means you have to apply the New York Versus Sullivan
(01:05):
rule of proving that the defendant Lindell new Or acted
with reckless disregard regarding the truth of the statements made,
and that has to be proven by clear and convincing
evidence in Colorado, not just by a preponderance of the evidence. So,
regardless of other aspects of the case, the reality is
(01:28):
it's a very high bar for Kumer to overcome in
order to recover from Michael Lindell for what were clearly
false statements.
Speaker 1 (01:36):
Lindell seems to be very aggressive and performative when understand
how does that play to a jury and a judge
in this type of case.
Speaker 3 (01:44):
Well, judge has already expressed her annoyance both with the
cheering section for Lindell and with Lindell himself, But in
terms of a jury, it's really up to them to
assess those issues. It's clear that the strategy of the
plaintiff's lawyers is to let Lindell talk and talk and talk,
(02:04):
believing he's going to hang himself with his own remarks,
and certainly from the reports at least, it doesn't seem
like he's done his case much good, if any.
Speaker 2 (02:14):
Scott He's also complained about being broke. Is that a
good strategy to avoid having to pay damages. And what
I learned, which I find just drinking, it's a low bar.
He only needs one juror to actually win his case
or protect his claim. That just doesn't seem like that's
much of a bar or threshold to have to cross
if you just need to convince one person that well,
maybe there's some sanity in this guy.
Speaker 3 (02:35):
Well, the reality is that a hung jury a mistrial
can be the result of just a single juror. But
Lindell can't win unless all the jurors agree in terms
of brewing for the plaintiffs. So it's not quite accurate
to say that one juror can win the case for Lindell,
but one juror could certainly make it difficult to reach
(02:57):
a verdict at all on the defamation. You that the
raising of the im broke defense is made possible because
the planet is seeking punitive or we're known as exemplary
get damages. So the assets of the defendant, at least
to a certain extent, are fair game. Again that that
(03:18):
might not fly with many jurors, But you know, unless
you're sitting in that jury box here in the evidence here,
we're probably not in a position to judge.
Speaker 1 (03:29):
It seems like defamation lawsuits in this country, in those
everything that kind of falls out from that, it seems
like they're very difficult to win. How and why is
it such a hurdle to overcome when it comes to
something like this.
Speaker 3 (03:46):
Well, in Colorado it's even greater than in the rest
of the country. As you know. In the New York
Times aressus. Sullivan case, the Supreme Court held as a
first First Amendment issue that in order to sue for
defamation of a public person, you have to prove that
(04:07):
that statements were made either knowingly false or with reckless
disregard of the truth. But again in Colorado, it can
be the same rigorous test if it's a matter of
public interest or general concern, and obviously presidential election is
a matter of public interests and great concern. In reality,
(04:31):
part of the reason Colorado's law is so stringent on
requiring proof of reckless disregard, which is defined basically as
probably false or having serious doubts about the truth of
what you're saying, can be linked to a former Colorado
Supreme Court justice. Every day it was a newspaper man,
(04:52):
and he decided most of Colorado's defamation cases in the
late sixties very early seventies. So the reality is that
tumor has a very high bar to jump over. But
I will tell you that Lindell and his lawyers have
done their best to make that lead possible. This is
(05:14):
a case. Remember that the defense lawyers were sanctioned by
the court for using AI and submitting briefs that included
citations to cases which did not even exist. That's not
very professional and that doesn't win any Browning points with
a judge.
Speaker 2 (05:31):
A final question though, for you, Scott, because you mentioned
how the defense has worked this and I guess they've
shown clips of Hillary Clinton and others with their it's
not the same election denialism, but saying they think the
election was this about things that happened with their elections
when they were running. That's not necessarily a bad strategy
to say. Look, I'm not the only one that does it.
They do it too. Is it kind of one of
those deals? What about ism?
Speaker 3 (05:53):
Well, I don't think what about ism is going to
work legally. It's going to work politically perhaps, but it
isn't going to work legally. The thing to remember is
that simply calling an individual a traitor is not defamatory.
That's actually a statement of opinion. But when you say
that an individual manipulated voting machines to change votes from
one candidate to another, if that's not true, well that's
(06:17):
that's definitely defamation. And so while the judge was very
lenient and letting the defense play out its defense, the
question is that they play out the rope enough to
hang themselves. And again, you just can't. You just can't
predict that kind of thing without sitting on the jury
(06:37):
and being in the deliberation room, which of course, as
a prexicing lawyer is never going to be possible for
someone like me.
Speaker 1 (06:43):
That's KAA legal analyst Scott Robinson. Scott, thanks for joining us.
Speaker 2 (06:47):
You bet seven fifty three. We take a look of
the drive Jonathan Steele KOA traffic Center
Defamation lawsuit against Michael Lindell could conclude today. The suit
comes from Eric Kumer, a former director of product, strategy
and security for Dominion Voting Systems. In twenty twenty, the
voting machine company was the target of election conspiracy theories
of which Mike Lindell was a prominent purveyor and has
played a key role in post election litigation, including winning
(00:20):
a historic settlement in a defamation case against Fox News.
Speaker 2 (00:23):
And joining is now in the koa Commas Spirit Health hotline.
It's the KO legal anaist. Our friend, Scott Robinson. Scott,
we appreciate coming on with this. I'll start with this
that Mike Lindell has said, and he said this on
the stand. He believes everything he said about the election,
but also said it could be hyperbole, so legally his
exaggeration of legal defense, it isn't.
Speaker 3 (00:43):
It really isn't. But the reality is that it's very
difficult to recover for defamation in Colorado. Unlike most states,
we treat a private individual the same as a public
individual in matters of public interest or general con which
means you have to apply the New York Versus Sullivan
(01:05):
rule of proving that the defendant Lindell new Or acted
with reckless disregard regarding the truth of the statements made,
and that has to be proven by clear and convincing
evidence in Colorado, not just by a preponderance of the evidence. So,
regardless of other aspects of the case, the reality is
(01:28):
it's a very high bar for Kumer to overcome in
order to recover from Michael Lindell for what were clearly
false statements.
Speaker 1 (01:36):
Lindell seems to be very aggressive and performative when understand
how does that play to a jury and a judge
in this type of case.
Speaker 3 (01:44):
Well, judge has already expressed her annoyance both with the
cheering section for Lindell and with Lindell himself, But in
terms of a jury, it's really up to them to
assess those issues. It's clear that the strategy of the
plaintiff's lawyers is to let Lindell talk and talk and talk,
(02:04):
believing he's going to hang himself with his own remarks,
and certainly from the reports at least, it doesn't seem
like he's done his case much good, if any.
Speaker 2 (02:14):
Scott He's also complained about being broke. Is that a
good strategy to avoid having to pay damages. And what
I learned, which I find just drinking, it's a low bar.
He only needs one juror to actually win his case
or protect his claim. That just doesn't seem like that's
much of a bar or threshold to have to cross
if you just need to convince one person that well,
maybe there's some sanity in this guy.
Speaker 3 (02:35):
Well, the reality is that a hung jury a mistrial
can be the result of just a single juror. But
Lindell can't win unless all the jurors agree in terms
of brewing for the plaintiffs. So it's not quite accurate
to say that one juror can win the case for Lindell,
but one juror could certainly make it difficult to reach
(02:57):
a verdict at all on the defamation. You that the
raising of the im broke defense is made possible because
the planet is seeking punitive or we're known as exemplary
get damages. So the assets of the defendant, at least
to a certain extent, are fair game. Again that that
(03:18):
might not fly with many jurors, But you know, unless
you're sitting in that jury box here in the evidence here,
we're probably not in a position to judge.
Speaker 1 (03:29):
It seems like defamation lawsuits in this country, in those
everything that kind of falls out from that, it seems
like they're very difficult to win. How and why is
it such a hurdle to overcome when it comes to
something like this.
Speaker 3 (03:46):
Well, in Colorado it's even greater than in the rest
of the country. As you know. In the New York
Times aressus. Sullivan case, the Supreme Court held as a
first First Amendment issue that in order to sue for
defamation of a public person, you have to prove that
(04:07):
that statements were made either knowingly false or with reckless
disregard of the truth. But again in Colorado, it can
be the same rigorous test if it's a matter of
public interest or general concern, and obviously presidential election is
a matter of public interests and great concern. In reality,
(04:31):
part of the reason Colorado's law is so stringent on
requiring proof of reckless disregard, which is defined basically as
probably false or having serious doubts about the truth of
what you're saying, can be linked to a former Colorado
Supreme Court justice. Every day it was a newspaper man,
(04:52):
and he decided most of Colorado's defamation cases in the
late sixties very early seventies. So the reality is that
tumor has a very high bar to jump over. But
I will tell you that Lindell and his lawyers have
done their best to make that lead possible. This is
(05:14):
a case. Remember that the defense lawyers were sanctioned by
the court for using AI and submitting briefs that included
citations to cases which did not even exist. That's not
very professional and that doesn't win any Browning points with
a judge.
Speaker 2 (05:31):
A final question though, for you, Scott, because you mentioned
how the defense has worked this and I guess they've
shown clips of Hillary Clinton and others with their it's
not the same election denialism, but saying they think the
election was this about things that happened with their elections
when they were running. That's not necessarily a bad strategy
to say. Look, I'm not the only one that does it.
They do it too. Is it kind of one of
those deals? What about ism?
Speaker 3 (05:53):
Well, I don't think what about ism is going to
work legally. It's going to work politically perhaps, but it
isn't going to work legally. The thing to remember is
that simply calling an individual a traitor is not defamatory.
That's actually a statement of opinion. But when you say
that an individual manipulated voting machines to change votes from
one candidate to another, if that's not true, well that's
(06:17):
that's definitely defamation. And so while the judge was very
lenient and letting the defense play out its defense, the
question is that they play out the rope enough to
hang themselves. And again, you just can't. You just can't
predict that kind of thing without sitting on the jury
(06:37):
and being in the deliberation room, which of course, as
a prexicing lawyer is never going to be possible for
someone like me.
Speaker 1 (06:43):
That's KAA legal analyst Scott Robinson. Scott, thanks for joining us.
Speaker 2 (06:47):
You bet seven fifty three. We take a look of
the drive Jonathan Steele KOA traffic Center
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